RECORD OF PROCEEDINGS PHYSICAL DISABILITY BOARD OF REVIEW NAME: XXXXXXXXXXXXXXXXXXX BRANCH OF SERVICE: ARMY CASE NUMBER: PD1200838 SEPARATION DATE: 20021101 BOARD DATE: 20130326 SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty PVT/E-2 (12B10/Combat Engineer) medically separated for painful feet due to cold weather injury and peripheral neuropathy. He was treated but did not improve adequately to fully perform his military duties or meet physical fitness standards. He was issued a permanent L4 profile and underwent a Medical Evaluation Board (MEB). The MEB found his bilateral painful foot condition medically unacceptable IAW AR 40-501 and referred him to a Physical Evaluation Board (PEB). No other conditions were listed on the DA Form 3947. The PEB found the bilateral painful foot condition unfitting and rated it 20% IAW the Veterans Affairs Schedule for Rating Disabilities (VASRD). The CI made no appeals and was medically separated with 20% disability. CI CONTENTION: The CI elaborated no specific contention in his application. SCOPE OF REVIEW: The Board’s scope of review as defined in DoDI 6040.44, is limited to those conditions which were determined by the PEB to be specifically unfitting for continued military service or when requested by the CI, those conditions “identified but not determined to be unfitting by the PEB.” The unfitting foot condition (bilateral painful feet secondary to cold weather injury and peripheral neuropathy) meets the criteria prescribed in DoDI 6040.44 for Board purview and is accordingly addressed below. No other conditions are within the Board’s purview. Any condition outside the Board’s defined scope of review may be eligible for future consideration by the Army Board for Correction of Military Records. RATING COMPARISON: Army PEB – dated 20021017 VA – All Effective 20021102 Condition Code Rating Condition Code Rating Exam Bilateral Painful Feet Secondary to Cold Weather Injury 7122 Left 10% Cold Injury, Left Foot 7122 10%* STR* Right 10% Cold Injury, Right Foot 7122 10%* STR* .No Additional MEB/PEB Entries. Not Service Connected x 3 STR* Combined: 20% Combined: 20%* *The applicant failed to report for his VA exam scheduled for 20030311 and so the VA rated his condition based on the Service Treatment Record (STR). VA Rating for each foot was later increased to 20%, by a VA Rating Decision (VARD) dated 20040908, effective 20040324, based on their VA exam dated 20030513. This raised the combined rating to 40%. ANALYSIS SUMMARY: Bilateral Foot Pain. In February 2002, the CI developed pain in both feet after prolonged exposure to the cold. Both feet had intense burning and tingling, indoors and outdoors. He had difficulty wearing certain types of footwear. At times, he had pain during sleep. He was diagnosed with cold weather injury of the lower extremities. He was treated with medications, but his bilateral foot pain persisted and a MEB was initiated. The CI’s MEB clinical evaluation was in July 2002. Examination revealed decreased sensation distally in both lower extremities. Vibratory sense, position sense, and deep tendon reflexes (DTRs) were normal. Gait, toe walk, heel walk, and equilibrium were all normal. As noted above, the CI was medically separated from the Army on 1 November 2002. After separation he filed a claim with the VA, but failed to appear for his April 2003 VA Compensation and Pension (C&P) exam. The Board carefully reviewed all available evidence. The Board noted that the Army PEB characterized the unfitting condition as “Bilateral painful feet secondary to cold weather injury and small fiber peripheral neuropathy sustained in Feb 02.” The condition was coded 7122 (cold injury residual). Each foot was rated separately at 10%, and the bilateral factor was applied, resulting in a combined rating of 20%. The VA also used diagnostic code 7122, and initially assigned a 10% rating to each foot, resulting in a combined rating of 20%. (The VA subsequently raised the rating to 20% for each foot in 2004 based on their C&P examination of 13 May 2004, about 18 months after separation.) The Board deliberated at length with regard to whether or not each foot warranted a 10% or 20% rating at the time of separation. The Board discussed the question of what constitutes the definition of “locally impaired sensation” IAW the VASRD rating criteria. For the reader’s convenience, VASRD §4.104 language for the 10% and 20% ratings under code 7122 is excerpted: Arthralgia or other pain, numbness, or cold sensitivity plus tissue loss, nail abnormalities, color changes, locally impaired sensation, hyperhidrosis, or X-ray abnormalities (osteoporosis, subarticular punched out lesions, or osteoarthritis) ............................................................20 Arthralgia or other pain, numbness, or cold sensitivity ...................................10 The MEB examiner on 26 July 2002 documented decreased sensation to pinprick and light touch, bilateral feet to ankles. During the gait exam, the CI stated he felt “as if he was walking on glass.” However, the VA, using the same evidence also arrived at the same rating conclusion as the PEB, citing “an evaluation of 10 percent is assigned for residuals of cold injury with small fiber peripheral neuropathy, (each) lower extremity because the evidence is negative for any findings consistent with the next higher level.” After extensive deliberation, the Board recommends by majority 2:1 vote a disability rating of 10% for each foot. Considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board found insufficient cause to recommend a change in the PEB adjudication for the bilateral painful foot condition. BOARD FINDINGS: IAW DoDI 6040.44, provisions of DoD or Military Department regulations or guidelines relied upon by the PEB will not be considered by the Board to the extent they were inconsistent with the VASRD in effect at the time of the adjudication. The Board did not surmise from the record or PEB ruling in this case that any prerogatives outside the VASRD were exercised. In the matter of the bilateral painful foot condition, IAW VASRD §104 the Board recommends by a majority 2:1 vote no change in the PEB adjudication. The single voter for dissent (who recommends 20% rating for each foot) did not elect to submit a minority opinion. There were no other conditions within the Board’s scope of review for consideration. RECOMMENDATION: The Board therefore recommends that there be no recharacterization of the CI’s disability and separation determination, as follows: UNFITTING CONDITION VASRD CODE RATING Painful left foot, secondary to cold weather injury 7122 10% Painful right foot, secondary to cold weather injury 7122 10% COMBINED (with BLF) 20% The following documentary evidence was considered: Exhibit A. DD Form 294, dated 20120614, w/atchs Exhibit B. Service Treatment Record Exhibit C. Department of Veterans’ Affairs Treatment Record xxxxxxxxxxxxxxxxxxx, DAF Acting Director Physical Disability Board of Review SFMR-RB MEMORANDUM FOR Commander, US Army Physical Disability Agency (TAPD-ZB / xxxxxxxxxxx), 2900 Crystal Drive, Suite 300, Arlington, VA 22202-3557 SUBJECT: Department of Defense Physical Disability Board of Review Recommendation for xxxxxxxxxxxxxxxxxxxxxxxxxxxxx, AR20130008807 (PD201200838) I have reviewed the enclosed Department of Defense Physical Disability Board of Review (DoD PDBR) recommendation and record of proceedings pertaining to the subject individual. Under the authority of Title 10, United States Code, section 1554a, I accept the Board’s recommendation and hereby deny the individual’s application. This decision is final. The individual concerned, counsel (if any), and any Members of Congress who have shown interest in this application have been notified of this decision by mail. BY ORDER OF THE SECRETARY OF THE ARMY: Encl xxxxxxxxxxxxxxxxx Deputy Assistant Secretary (Army Review Boards)